Citation Nr: 1222740
Decision Date: 06/29/12 Archive Date: 07/10/12
DOCKET NO. 09-11 100 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon
THE ISSUE
Entitlement to service connection for a left hip disability.
REPRESENTATION
Appellant represented by: Oregon Department of Veterans' Affairs
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
R.N. Poulson, Counsel
INTRODUCTION
The Veteran served on active duty in the Army from March 1966 to March 1968.
This matter comes before the Board of Veterans' Appeals (Board) from an April 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied service connection for a right leg injury. In a March 2012 Supplemental Statement of the Case (SSOC), the RO characterized the issue as entitlement to service connection for residuals of a left leg injury, to include a left hip fracture. This was done in response to the Veteran's assertion that he had injured his left leg, not his right leg, during in service. See February 2011 Decision Review Officer (DRO) Informal Conference Report. In a March 2012 rating decision, the RO granted service connection for residuals of a left ankle injury and assigned a noncompensable evaluation. The issue has been recharacterized as noted on the title page to reflect the Veteran's contentions and the procedural history.
In March 2009, the Veteran filed a substantive appeal and requested a hearing before a DRO and the Board. In September 2009 and February 2011, the Veteran had informal conferences with a DRO. On both occasions, he specifically requested an informal conference in lieu of a formal hearing. He subsequently withdrew the request for a Board hearing in writing in September 2011. The Veteran having withdrawn his hearing request, the Board will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (e)(2011).
The issue of entitlement to an increased initial evaluation for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
A left hip disability was not manifested until several years after the Veteran's separation from active duty and has not been found by competent and credible evidence to be in any way related to such service.
CONCLUSION OF LAW
A left hip disability was not incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011).
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).
Here, a letter dated in February 2010 complied with VA's duty to notify the Veteran with regards to the service connection issue adjudicated herein. Specifically, this correspondence apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The letter notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Although the February 2010 letter was provided after the initial adjudication, the Veteran has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Further, the claim on appeal was subsequently readjudicated in a March 2012 SSOC.
Moreover, the Board finds that VA has complied with its duty to assist the Veteran in the development of the issue adjudicated herein. VA has obtained service, VA, and private treatment records; afforded the Veteran a physical examination; and provided him the opportunity to give testimony at a formal hearing, which he declined. The VA examination is adequate for adjudication purposes. Specifically, the February 2012 examiner provided an opinion as to the etiology of the Veteran's left hip disability based on examination of the Veteran, his reported history, and review of the entire claims file. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. See 38 C.F.R. § 3.159 (c)(2).
There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).
II. Service Connection
Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).
Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. Arthritis, or degenerative joint disease, is a listed chronic disease for purposes of presumptive service connection. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3).
To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Here, the Veteran believes that he has a left hip disability resulting from an in-service injury. The Board notes that the Veteran is service-connected for residuals of a left ankle injury. He claims that he injured his left hip when he injured his left ankle, and that a private provider advised him that left hip X-rays showed an old fracture.
Service treatment records (STRs) are negative for any complaints of, treatment for, or findings related to a left hip injury.
The Veteran has submitted copies of letters he wrote to his wife while stationed in Vietnam. The letters establish that he sprained his left ankle on January 7,1967. His ankle was placed in a cast, which was removed on January 16, 1967. The Veteran also submitted a picture of himself on crutches, which was reportedly taken shortly after the injury.
A February 1968 separation examination contains a normal clinical evaluation of all systems.
Private treatment records for unrelated problems dated from May 2003 to March 2006 contain normal extremities examinations.
A December 2006 VA diabetes examination contains a normal extremities examination, except for a missing Babinski reflex.
The earliest medical evidence of left hip pathology is a private treatment record dated January 2009, forty years after the Veteran separated from military service. He complained of continued left hip pain that had improved. The clinician noted that October 2008 X-rays were within normal limits. No examination was conducted.
In February 2009, the Veteran reported that he began having left hip pain after a September 2007 motor vehicle accident. (The Board notes that the Veteran received treatment for back and shoulder injuries after the accident). He described a throbbing pain with distal migration down the leg toward the knee and occasionally below. Physical examination revealed some limitation of motion. The impression was left hip and leg pain of unclear etiology. The clinician noted that the Veteran's case was "difficult" because he did not have arthritis, bursitis, or iliotibial band syndrome. She recommended conservative treatment.
On September 2, 2009, the Veteran participated in an informal conference with a DRO. He explained that the letters he previously submitted were written in January 1967 (as reflected by the date stamp on the envelopes), and not January 1966 (as noted on some of the letters).
A private treatment record dated September 21, 2009 shows that the Veteran complained of left hip pain that had improved "dramatically," which the clinician attributed to prednisone taken for poison oak. No examination was conducted.
On September 24, 2009, Dr. D.G.S. noted that the Veteran complained of left lateral hip pain of approximately one year's duration. He also reported some intermittent numbness over the anterior aspect of the left thigh. He denied any formal treatment. X-rays showed stable minimal degenerative changes, unchanged from a December 2008 examination. No fracture or dislocation was evident. The doctor described the results as essentially unremarkable. The assessment was left hip greater trochanteric bursitis. A steroid injection was administered.
In November 2009, Dr. D.G.S. noted that the Veteran had noticed some relief from the injection, but that "it was not dramatic." The Veteran felt he had not benefitted from physical therapy. In fact, he mentioned that his physical therapist thought that the left hip pain might be coming from his back.
In January 2010, the Veteran was treated for low back pain that radiated to the left hip and lower extremity. He reported that the symptoms began after a motor vehicle accident in 2007. The assessment was lumbar spinal stenosis.
VA treatment records show that the Veteran was treated for left hip pain in March 2010. In April 2010, he reported that he "tore all the ligaments" in his left lower leg while stationed in Vietnam, after which he was in a walking cast for five weeks. May 2010 X-rays showed "mild dystrophic calcification of the left superolateral acetabulum, possible old labral injury." In July 2010, the Veteran was diagnosed with degenerative joint disease/osteoarthritis of both hips.
An August 2010 VA peripheral nerves examination conducted for an unrelated problem shows that the Veteran reported that his low back pain and left hip pain was due to spinal stenosis and meralgia paresthetica.
In February 2011, the Veteran participated in another informal conference with the DRO. He stated that while stationed near Pleiku, Vietnam, he jumped down out of a truck and "immediately felt excruciating pain" in the left ankle. He was treated at the base hospital and a cast was applied. He was released the following day and had limited duty for six weeks. He stated that the previously submitted photograph was taken right after the cast was removed. The Veteran stated that he thought his left ankle, or the bone directly above the left ankle, was injured or fractured at that time. He had reportedly been told that recent X-rays showed an old left hip fracture. He maintained that since the Vietnam injury was the only trauma he had ever experienced that involved the lower extremities, "the left hip fracture residuals must be related to the same injury." The Veteran stated that the left ankle pain was so intense that he "was probably unaware of the hip injury at that time."
In March 2011, the RO requested inpatient clinical records from the National Personnel Records Center (NPRC) for a left leg injury in January 1967 at Camp Holloway in Pleiku, Vietnam. The RO received a negative response in January 2012.
A February 2012 VA Disability Benefits Questionnaire (DBQ) shows that the Veteran complained that his left hip bothered him when first getting up out of a chair and when walking more than 1-1.5 miles. Lying on his side was painful. He reported no specific memory of a left hip injury and denied any symptoms of left hip pain until 5-6 years earlier. He related his theory that he suffered "some sort of hip fracture" at the same time he injured his left ankle after falling while getting out of a truck in 1967.
Upon physical examination, there was no tenderness over the anterior hip joint, but there was significant tenderness over the trochanteric area. There was no limp while walking. There was no atrophy of the hip muscles, although they were "slightly weak."
The examiner reviewed the extensive private treatment records and noted that the radiology reports "do not report anything other than a normal x-ray and in fact no mention of any old bony injury." The examiner determined that the records established back pain from a 2007 motor vehicle accident "which still continues." He noted that the Veteran had received an injection to the left hip, which had reportedly helped for one day. He also noted that the Veteran's physical therapist felt that the cause of the left hip pain was related to the back. The diagnosis was smoldering-chronic hip tendonitis, with no evidence of degenerative or traumatic arthritis. The examiner opined that the Veteran's left hip disability is "not at all related to any injury in the military." The examiner reasoned that the Veteran's symptoms "are classical for hip trochanteric tendonitis." He explained that there was no evidence in any radiology report of films of any fracture ever having occurred in the left hip. He noted that if the Veteran had injured his left hip in 1967, there would have been pain noted at that time "especially when walking for many weeks." The examiner concluded that "pain cropping up just 5-6 years ago is not consistent with a past fracture but is very consistent with a non-service related trochanteric tendonitis as noted by [the private physician]." He reiterated that "there is no connection at all of the present trochanteric tendonitis to past military service or to the alleged fall out of his truck during military service."
There is no evidence of degenerative changes of the relevant joint within the first post-service year, nor has the Veteran so contended. Presumptive service connection is therefore not warranted.
With respect to direct service connection, the evidence illustrates that the Veteran currently has a left hip disability. However, the medical evidence of record does not show any relationship between the post-service left hip disability and the Veteran's active duty. STRs do not indicate that the Veteran had any complaints of, or treatment for, any type of left hip problem while in service. Lay evidence establishes that the Veteran injured his left ankle while stationed in Vietnam. However, the injury for which he was treated appears to have resolved in service, without notation of sequelae (including complaints or treatment). Indeed, the examination performed just prior to the Veteran's discharge showed clinically normal lower extremities. In fact, a left hip disability was not first shown until forty years after the Veteran's active duty. The Court has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against a claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Thus, the lack of any evidence of complaints, symptoms, or findings of a left hip disability until four decades after service is itself evidence which tends to show that the Veteran's currently diagnosed left hip disability did not have its onset in service or for many years thereafter.
Moreover, as previously discussed herein, a VA examiner recently concluded that there is no relationship between the Veteran's left hip disability and his active duty. Significantly, there is no competent medical evidence to the contrary.
The Board acknowledges the Veteran's opinion that his left hip pain is due to an old left hip injury. However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the etiology of his current left hip disability and his views are of no probative value. And, even if his opinion was entitled to be accorded some probative value, it is far outweighed by the February 2012 VA examiner who thoroughly reviewed the claims file, examined the Veteran, and concluded that the left hip disability was not related to service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).
Accordingly and based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the claim for service connection for a left hip disability. There is no doubt to be resolved, and service connection for this disability is not warranted. Gilbert, 1 Vet. App. at 57-58.
ORDER
Service connection for a left hip disability is denied.
REMAND
Increased Rating - Bilateral Hearing Loss
In a January 2010 rating decision, the RO granted service connection for bilateral hearing loss and assigned a noncompensable evaluation, effective November 2, 2006. In an April 2010 VA Form 21-4138, the Veteran made the following statement: "Please accept this form as a formal request for increased service connection for the following condition: bilateral hearing loss." He specifically referenced the January 2010 rating decision, and stated that the RO had relied on a VA audiological examination that was over three years old. The Veteran claimed that his hearing had worsened during that time period, and requested a new VA examination.
The Board construes the April 2010 correspondence as a timely notice of disagreement (NOD) with the January 2010 rating decision. In August 2010, the Board continued the noncompensable evaluation for the Veteran's bilateral hearing loss. Thus, the January 2010 rating decision remains pending, and the RO is required to send the Veteran a statement of the case (SOC) in accordance with 38 U.S.C.A. § 7105 and 38 C.F.R. §§ 19.29, 19.30. Where an NOD has been submitted, the veteran is entitled to an SOC. The failure to issue an SOC is a procedural defect requiring a remand. Manlincon v. West, 12 Vet. App. 238 (1999).
Accordingly, the case is REMANDED for the following action:
Issue an SOC to the Veteran addressing the issue of entitlement to an initial compensable evaluation for bilateral hearing loss. The Veteran also must be advised of the time limit in which he may file a substantive appeal. See 38 C.F.R. § 20.302(b). If, and only if, the appeal is perfected by a timely filed substantive appeal, this issue should be certified to the Board.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
______________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs